Sentencing Reform Rises from the Dead

Time is on Your Side

Crime Costs Too Much – So Does Punishment

Good Judge …

… Bad Judge

Last Week Was a Big One for Criminal Law Arguments at the Supreme Court

SENTENCING REFORM RISES FROM THE DEAD

The senators who have been revising the Sentence Reform and Corrections Act of 2015 unveiled their reworked compromise in a news conference last Thursday, showing a renewed sense of
momentum behind legislation to ease mandatory minimum sentences for nonviolent offenders.

“Obviously, reaching a consensus hasn’t been easy,” Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) said. “But we believe that it truly addresses in a bipartisan way the concerns that had been brought forward.” Senate Minority Whip Dick Durbin (D-Illinois), added: “This is the best chance in a generation to reform our criminal drug sentencing laws.”

Supporters say four Republican and three Democrat senators are signing on as new co-sponsors. As of Friday, six had done so.

The changes in the revised bill are substantial. The language in the original legislation to reduce the mandatory minimum sentence from 15 to 10 years for people convicted under the Armed Career Criminal Act has been eliminated. Reuters reports that ACCA inmates “represent nearly a fifth of the 12,908 current inmates who would have been eligible for resentencing under the old bill, according to the U.S. Sentencing Commission.” Other reduced mandatory minimum sentences in the bill will not apply retroactively to anyone who has been convicted of any “serious violent felony.” The Marshall Report characterized the changes in its email news report last Friday as “honey, I shrunk the reform bill.”

Mens rea reform was excluded from the revision because the authors are divided on the issue. Democrats generally oppose strengthening mens rea requirements, arguing it would enable more corporate misconduct by making it difficult to prove corporate “intent.” NPR reported last Friday that House Speaker Paul Ryan (R-Wisconsin) wants to move forward with the House version of the reform bill, “but what should be included in the bills, and what should be left out, is not so simple. House Republicans have said they will not approve lightening penalties for drug offenses without language that would raise the burden for prosecutors in proving criminal intent in some environmental and business cases. That’s a deal-breaker for the Justice Department and some Democrats.”

The House bill, H.R. 3713, picked up another Democrat co-sponsor last Friday, for a total of 66.

The next step for the Senate bill’s backers will be to persuade Senate Majority Leader Mitch McConnell (R-Kentucky) to bring the legislation to a vote this year.

It’s not going to be a slam-dunk by any means. Shortly after last Thursday’s news conference, Sen. Jeff Sessions (R-Alabama) issued a long, stinging press release slamming the revisions. He complained that “despite assurances otherwise, the revised bill still shortens mandatory minimums for repeat drug traffickers, including those who carried a gun, and would allow for early release of those currently in federal prison. For example, someone like Wendell Callahan – who was released early from federal prison and murdered his ex-girlfriend and her two young daughters – would still be eligible for early release under the bill. In a 2011 motion for Callahan’s sentence reduction, Callahan’s attorney said federal prosecutors agreed that Callahan’s good behavior in prison and other factors led both sides to conclude that his early release did not present a danger to the safety of the public. Much like the Callahan case, courts across the country are rubber-stamping motions for early release pursuant to the Sentencing Commission reductions.”

Sen. Sessions is just one voice, but an important one. Ohio State law professor Douglas Berman noted in his sentencing blog last week that Sen. Sessions was the first senator to support Donald Trump, and that Sessions’ opinions are likely Trump’s opinions, too. Berman wrote, “I am not sure if this criticism will keep the revised SRCA from being brought up for a vote, but I do think the connection between Senator Sessions and presumptive GOP Prez candidate Trump provides yet another significant impediment to this bill becoming law.”

TIME IS ON YOUR SIDE

Elderly prisoner Archie Rachel sued in federal court because of inadequate medical care at his state prison. The prison moved for summary judgment. The district court gave Archie 21 days to seek discovery from the prison and file his opposition.

Archie – who had access to a law library for a few hours a week – could not even get discovery responses in 21 days. He moved for a 14-day extension of time, but when the district court did not rule on it, Archie whipped together an opposition and filed it without benefit of the discovery. The court granted summary judgment to the prison, and threw out Archie’s complaint.

Last week, the 10th Circuit reversed the district court. Generally, the rule allowing an extension of time “for good cause” – F.R.Civ.P. 6(b)(1) – should be liberally construed to advance the goal of trying each case on the merits. District courts should normally grant extension requests, made before the deadline, in the absence of bad faith by the requesting party or prejudice to another party.

Here, the Court said, Archie was 71 years old, physically handicapped, experiencing health problems, taking a variety of medications, and limited to a few hours a week in the library. It noted that he filed for the extension 14 days before his deadline, and “no one has questioned the presence of good cause for an extension of time.” Under those circumstances, the Court of Appeals said, the magistrate judge’s failure to address the extension motion “constituted an abuse of discretion.”

Meanwhile, back at the White House, the Obama administration – with the help of some prominent conservatives – has mounted a full-court press to push the case for rewriting nation’s criminal justice system. The argument is that too many people are in prison, at too great an economic and human cost to the United States.

A band of liberals and conservatives joined at a White House event last week to urge Congress and the states to re-examine the cost of incarceration. They want to reduce the U.S. prison population, prepare inmates for life after prison and take measures to prevent people from turning to a life of crime.

The White House also released a report on the economic consequences of the criminal justice system that included a flood of statistics making a strong case for an overhaul. “Sometimes a cost-benefit analysis tells you it’s a slam dunk,” said Douglas Holtz-Eakin, a conservative economist and president of the American Action Forum. And Arthur Brooks, president of the conservative-leaning American Enterprise Institute, said the case for an overhaul is not just about money. “This is about the lives we are throwing away,” he said. “We pay an enormous price for this.”

The defendant in front of North Carolina Judge Lou Olivera had a substance abuse record. He also had a 20-year record as an Army Special Forces sergeant, with four tours in Afghanistan, three Purple Hearts and serious PTSD.

When the defendant, Joseph Serna, admitted he had lied about a urine test, he was sentenced to a night in jail. The judge could see the man was shaking with fear. A veteran himself, Judge Olivera feared Serna might have a PTSD attack during the night.

As Serna sat down on the cot in his cell, he heard the door rattle open again and saw Judge Olivera walk in and sit down beside him. Someone came and locked the door. “This was a one-man cell so we sat on the bunk and I said, ‘You are here for the entire time with me?’” Serna reported later. “He said, ‘Yeah that’s what I am doing’.”

The two passed the night trading stories of their experiences in the military. Serna later said: “It was more of a father-son conversation. It was personal.”

Harrison Norris, a black man, received a life sentence after being convicted of forcing women – mostly white women (which turns out to be important) – into prostitution. His sentence was overturned on appeal as not being proper under the Guidelines and was cut to 35 years when he was resentenced by a different judge. But the saga did not end there.

The district judge who presided over Norris’s trial and original sentence was arrested for drug and gun possession several years later. Evidence from the arrest showed the judge had bipolar disorder and a brain injury from a bicycling accident. The investigation also found witnesses who said the judge wanted to give all black men who pimped white women the maximum penalty and that he specifically disliked Norris. Norris filed a Sec. 2255 motion to set aside the conviction on the grounds of judicial bias, but the motion was denied without a hearing.

Last week, the 11th Circuit reversed, sending the case back for a hearing. Norris proffered evidence that the judge “had a difficult time adjudicating African-American men’s cases and specifically disliked Norris based on the fact that Norris was a black man who pimped white women,” and the judge had told a witness that he “wanted to give all black offenders who pimped white women the maximum possible penalty.” The Court said that “contrary to the ruling of the district court, structural error occurs when a judge with actual bias against a defendant presides at his trial… “The entire conduct of the trial from beginning to end is obviously affected . . . by the presence on the bench of a judge who is not impartial.” And we cannot review a trial transcript to determine whether the presiding judge, despite his actual bias, was fair: “The record does not reflect the tone of voice of the judge, his facial expressions, or his unspoken attitudes and mannerisms, all of which, as well as his statements and rulings of record, might have adversely influenced the jury and affected its verdict.”

The Supreme Court of the United States (SCOTUS) sits for a 9-month “term” that runs from October to the end of June. In order to wrap up its year, the Court usually hears its last oral arguments by the end of April, and then issues a flurry of opinions over the last 8 weeks or so before its summer recess.

The Court’s final week of oral arguments last week included two criminal cases of note. The headline-grabber was McDonnell v. United States, featuring a former Virginia governor as defendant. McDonnell was convicted of taking over $100,000 in gifts from a businessman, and in exchange arranging meetings and generally plugging the guy’s products. The catch is that the Governor awarded his benefactor no contracts, sponsored no legislation, and did not strong-arm any state officials into favorable decisions.

The statutes used to convict McDonnell make it illegal to take “official action” in exchange for anything else of value. The question is exactly what constitutes “official action.” In arguments last week, the Justices seemed inclined to draw a line between “access” and “influence.” Organizations representing former government officials, defense attorneys and law professors filed briefs supporting McDonnell, arguing against government overreaching in defining the statute, which they say criminalizes virtually any assistance government officials or workers might provide to someone who had previously given them a gift, however small.

In not nearly as sexy a case, but probably more important to many federal defendants, SCOTUS heard arguments in Mathis v. United States last Tuesday. Mathis grapples with the “modified categorical approach” (MCA) ¬– defined three years ago in Descamps v. United States – of determining whether state burglary statutes define crimes that count under the ACCA, the Guidelines, and other federal offenses that define prior crimes as “violent” or “nonviolent.” Defendant Mathis says one must look at the statute first. The government wants courts to look at what the defendant’s state court records (Shepard documents) say he did. Justice Kagan – who wrote Descamps – suggested courts should look at the state statute and model jury instructions first, and only consult Shepard documents as a last resort.

Mathis was sentenced under the ACCA in part because of a prior Iowa 3rd degree burglary. The district court found the Iowa statute divisible even though the Iowa Supreme Court had squarely held that the burglary statute contained a single unitary set of “elements.” The 8th Circuit Court of Appeals affirmed, holding that the distinction between means and elements is irrelevant to the determination of divisibility.

If the Supreme Court adopts Mathis’s argument, most state burglary laws would probably not trigger the ACCA, and many lawful permanent residents would not face removal based on state burglary convictions. And the Court may well side with Mathis. SCOTUSBlog, a website covering the Supreme Court, said “it remains hard to see a path to victory for the government. Kagan is both a sure vote for Mathis and a logical candidate to take the opinion. Justice Sotomayor’s questions and comments during the argument certainly gave no hint of anything other than a vote for Mathis. Justice Thomas also seems a certain vote for Mathis, given his concurrence in Descamps in which he argued the MCA approach violates the 6th Amendment under Apprendi v. New Jersey. Neither Chief Justice Roberts nor Justice Breyer tipped his hand during Tuesday’s argument, but both joined Kagan’s Descamps opinion in full.”

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. If we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

If you have a question, contact us using our handy contact page. We don’t charge for initial consultation.

Irritating Self-Representation No Basis for Higher Sentence

Get It in Writing

Let’s Talk About the Weather – or Maybe Sentence Reform

We’ve had Johnson v. United States on our mind after the Supreme Court’s quick decision in Welch v. United States last week held Johnson to be retroactive. So when Welch was followed by the high court’s 8-0 decision last Wednesday in Molina-Martinez v. United States, we could not help but think that its logic might bolster the arguments of Guidelines “career offenders” seeking to take advantage of Johnson in post-conviction proceedings.

Saul Molina-Martinez was sentenced at the bottom of his 77-96 month range. At the time, no one realized that his Presentence Report mistakenly put him in a higher criminal history category than his record justified. Only after Saul’s attorney told him that he had no good appeal issues did the defendant himself find the error and bring it to his lawyer’s attention.

When an issue is not first raised in the district court, it is almost always reviewed in the Court of Appeals under the F.R.Crim.P. 52(b) “plain error” standard. It’s a hard standard to meet. The error has to be obvious and must affect the defendant’s “substantial rights.” Saul’s problem was that his 77-month sentence fell right in the middle of the 70-87 month sentencing range he would have had applied to his case if the error had not been made. The 5th Circuit held that because Molina-Martinez’s sentence fell inside the correct, lower range, the error did not affect his substantial rights, because he could not show his sentence would have been lower but for the mistake.

The Supreme Court rejected this “categorical” requirement that a defendant must present “additional evidence” indicating that he would have received a different sentence had the right range been used. The Supreme Court’s opinion leaned heavily on its 2012 ruling in Peugh v. United States (which established that despite the advisory nature of the Guidelines, they still have to pass constitutional muster). Citing Peugh, last week’s decision stressed that the “Guidelines’ central role in sentencing means that an error related to the Guidelines can be particularly serious.” This necessarily means that in “most cases a defendant who has shown that the district court mistakenly deemed applicable an incorrect, higher Guidelines range has demonstrated a reasonable probability of a different outcome” if the proper guideline range had been used.

The Court’s logic – as well as its strong reliance on Peugh – may provide a tailwind to defendants arguing that use of an unconstitutionally vague “residual clause” in labeling a defendant a Guidelines “career offender” is as much a denial of due process as is wrongly using the same “residual clause” to sentence him under the Armed Career Criminal Act.

A Massachusetts federal judge ruled Wednesday that a search warrant for a wide-ranging Internet search issued by a federal magistrate judge in Virginia was invalid. The child pornography the government claimed was on the defendant’s computer was ordered suppressed, making continuing prosecution of this case unlikely.

The search warrant, issued under F.R.Crim.P. 41 in early 2015, allowed federal agents to use a “network investigative technique” (NIT), which is a piece of software typically used to penetrate the digital security of the Tor network. (Tor is a system used to hide the digital identify of users). That NIT “malware” led authorities to the defendant’s computer.

Earlier this year, the defendant challenged the government’s judicial authorization to deploy the NIT. He argued the warrant “allowed government agents to conduct a borderless dragnet search with no geographic limitation … Rule 41 simply does not permit a magistrate judge in Virginia to authorize the search of the defendant’s computer located in Massachusetts.”

The district court held that current law restricts the power of magistrate judges to grant search warrants for locations outside of the court’s district. The Federal Rules of Criminal Procedure and precedent do not restrict the power of district judges to do so, however. The judge noted that “unlike magistrates, the jurisdiction of district courts is usually defined by subject matter and parties rather than strictly by geography.”

For the past several years, DOJ has sought to expand magistrate judges’ ability to sign off on the deployment of NITs. The change would give federal authorities an expanded ability to conduct “remote access” under a warrant against a target computer whose location is unknown or outside of a given judicial district. Civil liberties groups and tech companies like Google strongly oppose the change, arguing it would vastly expand the government’s authority to hack into networks in search of criminal suspects.

The Supreme Court is expected to decide whether to approve a change to Rule 41 by May 1. Congress will then have seven months to accept, reject or modify a change. If lawmakers take no action, the rule would take effect in December.

Generally, adopting a trial strategy of acting like a jerk is a bad idea. Last week, however, the 7th Circuit said it was no basis for an increased sentence.

Ken Lewis figured he knew more than his lawyers. He probably figured he knew more than the judge, too. So in his trial for wire fraud and money laundering, he represented himself, despite warnings that it was a bad idea. He of course was convicted, but only after – as the Court of Appeals drily put it – he “was an irritant during the trial process.”

The district court did not take kindly to Ken’s trial shenanigans. It sentenced him to 151 months for wire fraud, and then stacked an additional 120 months on for the money laundering. The court based the draconian sentence on Ken’s misconduct during the trial.

On appeal, Ken continued his self-representation, but the Court of Appeals wisely appointed an attorney to write an amicus brief on his behalf. Ken did his cause no good, but the Court overlooked that, focusing instead on the amicus arguments. They were pretty good, too – the amicus lawyer forced the Government to admit that the money laundering conviction should be thrown out. The Court agreed, saying “the record is devoid of evidence that Lewis laundered money.”

The amicus attorney also argued that the district court could not punish Ken at sentencing for his foolish trial conduct. The Court agreed, saying that “Lewis’ litigation tactics cannot serve as a basis for his sentence. The record demonstrates that Lewis was an irritant during the trial process.” But it “would not be appropriate or permissible” to lengthen his sentence because of such vexatiousness, particularly given his pro se status. The district court’s frustration, however understandable, cannot permeate sentencing.”

Bob McNeese was a pharmacist who let himself be pressured into dispensing oxycodone to people who resold the pills on the street. He turned himself in, and worked out a plea deal in which he agreed to plead guilty to a conspiracy charge. His plea agreement noted that he had cooperated with authorities and had admitted to distributing at least 15,850 oxycodone pills, which the agreement mentioned “converts to” 2999.925 kilograms of marijuana. Pursuant to F.R.Crim.P. 11(c)(1)(C), McNeese and the government agreed to a fixed sentence of 63 months. The agreement mentioned that the sentence “takes into account the cooperation and assistance provided to law enforcement in this investigation,” but nowhere mentioned the Sentencing Guidelines or any range of punishment on which the 63 months was based.

The Presentence Report calculated Bob’s sentencing range to be 87-108 months. At sentencing, the government explained that Bob had assisted law enforcement and that an additional “three level reduction was included into this overall agreement” to account for that. That would have landed the 63-month sentence squarely within a 63-78 month range. The court observed that Bob had “gotten the benefit of what in effect is a downward departure motion” and imposed the 63-month sentence.

When the Sentencing Commission adopted Amendment 782, Bob applied for his 2-level reduction. The District Court said he was not eligible, because he had a Rule 11(c)(1)(C) agreed-upon sentence. Last week, the 6th Circuit agreed.

Bob argued that his case was like Freeman v. United States, in which the Supreme Court said that a Rule 11(c)(1)(C) sentence could be reduced under 18 U.S.C. § 3582(c)(2). But there, the plea agreement expressly said the agreed-upon sentence had been based on the Guidelines, and it provided the defendant’s criminal history and offense levels so that anyone reviewing it could confirm the calculation.

The 6th Circuit said that Bob’s argument “would require this court to make assumptions about what the parties might have known while negotiating and speculate about what might have motivated them when they put pen to paper… It is true that the prosecutor’s remarks at the sentencing hearing—together with the presentence report prepared by the probation officer—make clear that by the end of the sentencing hearing, McNeese, the government, and the district court all understood that the agreed-upon sentence did in fact derive from a Guidelines sentencing range. But nothing in the Freeman [decision] suggests that the parties’ knowledge, unexpressed or later expressed, should make any difference so long as a “sentencing range is [not] evident from the agreement itself.”

The Sentencing Reform and Corrections Act of 2015 is turning out to be a lot like the weather – everyone’s talking about but nobody’s doing anything. The two bills – S. 2123 in the Senate and H.R. 3713 in the House – remain stalled. The Senate bill still has 28 cosponsors. The House measure picked up a Pennsylvania Democrat last week, and now has 65.

An optimistic note was sounded a week ago in an opinion piece in The Hill, a Capitol Hill newspaper. The ACLU official who wrote it said “reformers from across the political spectrum … are still focusing their efforts in the states, to ensure that voices of support are amplified virtually everywhere, and that lawmakers leading the effort are being encouraged supported by their constituents … The signs are promising.”

The chief Republican backers, led by Judiciary Committee Chairman Chuck Grassley (Iowa) and Majority Whip John Cornyn (Texas) have lobbied GOP senators for weeks to prove to Majority Leader Mitch McConnell (R-Kentucky) that they can gin up sweeping support for the bill and move the legislation quickly on the Senate floor.

As we reported last week, since concerns about the bill were made public, the authors have revised several provisions in the legislation. A section that reduced mandatory minimum sentences for those convicted under the Armed Career Criminal Act has been eliminated, and the bill now denies retroactivity to anyone who has been convicted of any “serious violent felony,” whatever that might be.

Those changes may be winning over some new Republicans. “We’re taking a real close look at it this week,” said Sen. Ron Johnson (R-Wisconsin), who is locked in one of the most competitive races of the year. “I’m very sympathetic with the bill.”

Backers are targeting Republican senators up for reelection this year. “We have a lot of progress made and people saying that we’ve gone in the right direction. But we’re not getting answers from some people,” Grassley said in a brief interview Wednesday. “Like for instance, one senator says, ‘I’ll let you know Monday.’ He hasn’t let us know.”

Sentence reform sponsors have hinted at a formal rollout of the bill for a floor vote for weeks, but the delay continues to buy more time to build support. Supporters admit they must prove to McConnell that they have 60 votes for the measure before the majority leader will schedule a floor vote on a bill that will divide Republican senators.

Meanwhile, legislative time is running short, and other issues are competing for what’s left of it. The Senate is preparing to restart its lengthy appropriations process. After the Republican National Convention in July, the chamber will be pretty much on recess until after the November election.

On criminal justice reform, the House has H.R. 3713, a parallel bill. The House Judiciary Committee has thus far passed eight separate measures – including H.R. 3713 – on issues such as sentencing and prison reform. House Speaker Paul Ryan (R-Wisconsin) has said he plans to bring those bills to the floor this year. The two chambers will have to resolve differences on the issue of mens rea — laws governing criminal intent. The Senate bill doesn’t include mens rea reform because of Democrat opposition, yet House Republicans have demanded that it be part of an overall criminal-justice package.

Finally, a pair of economists last week argued in the New York Times that the law of diminishing marginal benefits “applies to incarcerating additional people or adding years to sentences. Research finds that more incarceration has, at best, only a small effect on crime because our incarceration rate is already so high. As the prison population gets larger, the additional prisoner is more likely to be a less risky, nonviolent offender, and the value of incarcerating him (or, less likely, her) is low.”

“The same general principle applies to the length of prison sentences, which in many cases have gotten longer as a result of sentence enhancements, repeat-offender laws, “three strikes” laws and “truth-in-sentencing” laws,” they wrote. “Longer sentences do not appear to have a deterrent effect … Other studies have found that sentencing enhancements have only modest effects on crime. They are unlikely to meaningfully affect the overall crime rate or generate meaningful gains in public safety. Moreover, in many cases the analysis suggests that adding prisoners or years to sentences can be harmful. A growing body of research shows that incarceration and longer sentences could increase recidivism. Individuals may build criminal ties while incarcerated, lose their labor-market skills and confront substantial obstacles to re-entry after release. A new study finds that each additional year of incarceration increases the likelihood of re-offending by four to seven percentage points after release.”

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. If we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

If you have a question, contact us using our handy contact page. We don’t charge for initial consultation.

Supreme Court Declares Johnson Retroactive

Sentencing Commission Proposes 2016 Amendments

Something in the Wind at Supreme Court Today?

Sentencing Commission Challenges BOP Primacy on Compassionate Release

Is Sentencing Reform Being Watered Down?

SUPREME COURT DECLARES JOHNSON RETROACTIVE

By a 7-1 vote, the United States Supreme Court this morning declared that its holding last summer in Johnson v. United States – that declared the “residual clause” of the Armed Career Criminal Actto be unconstitutionally vague – is retroactive to cases that were already final when Johnson was handed down.

In an unusual decision announcement on a Monday morning, just before a major argument got underway on the Obama administration’s immigration orders (United States v. Texas), the 8-member Court held in Welch v. United States that the Johnsondecision was a “substantive rule” and thus retroactive. The decision reversed an 11th Circuit denial of a 2255 motion.

The Court said that under the Teague v. Lane “framework, the rule announced in Johnson is substantive. By striking down the residual clause as void for vagueness, Johnson changed the substantive reach of the Armed Career Criminal Act, altering “the range of conduct or the class of persons that the Act punishes.” Before Johnson, the Act applied to any person who possessed a firearm after three violent felony convictions, even if one or more of those convictions fell under only the residual clause. An offender in that situation faced 15 years to life in prison. After Johnson, the same person engaging in the same conduct is no longer subject to the Act and faces at most 10 years in prison. The residual clause is invalid under Johnson, so it can no longer mandate or authorize any sentence. Johnson establishes, in other words, that “even the use of impeccable factfinding procedures could not legitimate” a sentence based on that clause. It follows that Johnson is a substantive decision.”

Justice Kennedy wrote the opinion. Only Justice Thomas dissented.

The decision should start a land rush onACCA and “career offender” 2255 motions over the next two months. The timeliness rules of 28 U.S.C. § 2255(f) suggest that any filings seeking to benefit from Johnson retroactivity must be filed by the one-year anniversary of the Johnson ruling, which was handed down on June 26, 2015.

The U.S. Sentencing Commission adopted proposed changes to the Sentencing Guidelines last Friday, amendments that included significant modifications to immigration and animal fighting sentences. Of most relevant to federal inmates, the Commission challenged the BOP by proposing a major expansion in the standards for compassionate release (see third story).

The immigration amendment would create a scale of Guideline levels to account for the level of a defendant’s prior criminal conduct in a more proportionate manner than the current flat 16-level enhancement.

The Commission also voted to strengthen the Guidelines “to better reflect the cruelty and violence” associated with animal fighting offenses. After receiving over 50,000 comments on the proposal – a Sentencing Commission record – the agency voted to raise the base offense level for animal fighting offenses by 350% and to add an enhancement for anyone who takes a minor to an animal fight.

In the last few years, the vagueness and incomprehensibility of standard supervised release terms have made them a punching bag for the courts. In response, the Sentencing Commission proposed amendments to revise and clarify probation and supervised release terms. The agency admitted that “the Seventh Circuit has found several of the standard conditions to be unduly vague, overbroad, or inappropriately applied … and has also suggested that the language of the conditions be revised to be more comprehensible to defendants and probation officers, and to contain a stated mens rea requirement where one was lacking.” The proposed changes are intended to be “simply worded, bearing in mind that, with rare exceptions, neither the defendant nor the probation officer is a lawyer and that when released from prison the defendant will not have a lawyer to consult.”

Nothing in last Friday’s proposal addressed whether the proposed Guidelines changes would be retroactive. In the past, the Commission has not addressed retroactivity when a Guidelines change was proposed. If any of the proposed amendments is a suitable candidate for retroactivity, the Commission will probably take it up the question in a future proceeding.

The Supreme Court, altering its usual agenda, announced last week that it would issue one or more opinions in argued cases today, as well as on the more normal days of Tuesday and Wednesday. Ordinarily, when the Court is hearing argument on Mondays, it releases only orders in new cases, and withholds opinions until later in those weeks.

The new plan stirred speculation that the Court has found some specific urgency in a pending case that requires immediate action. Monday will see a large crowd in the courtroom because the case up for argument that day is the major challenge to President Obama’s 2014 revision of immigration policy, in the case of United States v. Texas.

Last Friday’s Sentencing Commission proposal to change the standards by which the BOP picks inmate candidates for compassionate release under 18 U.S.C. § 3582(c)(1) is a shot across the BOP’s bow, but whether the proposal leads to any change is far from settled.

Last February, during a hearing on compassionate release, the Sentencing Commission was openly skeptical of the BOP’s claim that it alone was entitled to set standards for compassionate release. The Commission’s proposed amendments last week clearly marked its territory, asserting that “Congress charged the Commission with issuing policy statements describing what should be considered extraordinary and compelling reasons for a sentencing reduction.”

Under the proposed amendment, federal inmates should be proposed for compassionate release if they fall into one of four broad categories: (1) medical condition; (2) age; (3) family circumstances; or (4) other reasons:

• As proposed, the “medical condition” factor would apply where the inmate either had a terminal illness, suffered from a serious condition, suffered from a serious functional or cognitive impairment, or was experiencing deteriorating health because of age that substantially diminished the defendant’s ability to provide self-care within a correctional facility and from which the inmate was not expected to recover. The proposed Guideline defines a “terminal illness” as a “serious and advanced illness with an end of life trajectory.” Unlike current BOP standards, the proposed Guideline says “a specific prognosis of life expectancy (i.e., a probability of death within a specific time period) is not required.”

• “Age of the defendant” would apply if the defendant is at least 65, has a serious deterioration in physical or mental health because of the aging process, and has served at least 10 years or 75 percent of his or her term of imprisonment (whichever is less).

• “Family circumstances” would apply to the incapacitation of the caregiver of the defendant’s minor child, or to the incapacitation of the defendant’s spouse or registered partner when the defendant would be the only available caregiver.

• “Other reasons” permit the Bureau of Prisons to determine that, in any particular defendant’s case, an extraordinary and compelling reason other than (or in combination with) a reason identified by the Commission exists.

So this sounds like great news, right? It does, except for one fly in the ointment. BOP witnesses told the Commission last February that only the BOP Director has the right to define what constitutes “extraordinary and compelling reasons” under the statute, and the Sentencing Commission should butt out. For that matter, the BOP said, it rejected the DOJ inspector general’s critical report in May 2015 that the Bureau had “poorly managed” the compassionate release program, and had eligibility requirements for both medical and non-medical provisions that were “unclear” and “confusing.”

The proposed Guidelines amendment “encourages the Director of the Bureau of Prisons to file a motion if the defendant meets any of the circumstances” defined by the Guidelines, and to let the courts decide “whether the circumstances warrant a reduction.” In other words, the BOP filing should be automatic whenever an inmate is eligible, rather than the discretion-ridden system used today.

Unfortunately, for the BOP to follow the Guidelines’ suggestion (and thus improve on its 7% approval rate on compassionate release requests since 2013), the agency will first have to surrender its current position that it alone may decide whether an inmate is entitled to compassionate release.

The Sentencing Reform and Corrections Act of 2015, before the Senate as S. 2123, and before the House as H.R. 3713, remained stalled last week, with the Senate bill holding at 28 cosponsors. The House version of the bill picked up one additional sponsor – a Democrat from Iowa – and now has 64.

The liberal political magazine The American Prospect last week admitted that “the death of Supreme Court Justice Antonin Scalia and the subsequent battle over President Obama’s pick to replace him have distracted Republicans from sentencing reform,” but nevertheless said that “although momentum has slowed on a plan that could have attracted strong bipartisan support, criminal justice reform advocates believe that the lull may help federal lawmakers craft a more popular package.”

Last week, lawmakers got a sense of what that “more popular package” may look like, as some Senate Republicans released a proposal that would substantially water down the retroactive relief contained in S. 2123 as currently written.

The conservative newspaper Washington Examiner reported that Senate Majority Whip John Cornyn (R-Texas), Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), and Sen. Mike Lee, (R-Utah), the leading architects of the bill, are circulating updated version of the legislation and a background memo to their Republican colleagues who they see as most likely to back the legislation.

There are two problems: First, this is an election year. Second, we have Willie Horton. Horton was a Massachusetts murderer serving natural life who was released for a weekend furlough back in 1986. Unsurprisingly, he never returned to prison, and later committed rape and robbery in Maryland. During the 1988 presidential campaign, Republicans hung the blame for Willie Horton’s release on Democratic presidential candidate Michael Dukakis, who was governor of Massachusetts at the time (despite the fact the furlough was not his program). Since that time, “Willie Horton” has become shorthand for every politician’s fear that any criminal justice reform he or she has supported will release a Willie Horton, and the blame will blow back during the reelection campaign.

As we reported in January, the Sentencing Reform and Corrections Act already has its own Willie Horton, a Columbus, Ohio, man named Wendell Callahan. In 2007, a federal court sentenced Callahan to 150 months for selling crack. Wendell’s time was first cut to 110 months because of the 2007 reduction in the crack Guidelines, and then – three years later –another 10 months were lopped off because of the second drug guideline reduction. Callahan was released in August 2014.

In January, Wendell was charged with stabbing his ex-girlfriend and her two young daughters to death. The Columbus Dispatch reported that Wendell “likely would have been deep into a 12 1/2-year federal prison sentence if sentencing guidelines for convicted crack dealers had remained unchanged.”

“Every one of us who votes to release violent criminals from prison prior to the expiration of their sentence can fully expect to be held accountable by our constituents,” Sen. Ted Cruz (R-Texas) said last year during a Judiciary Committee hearing on the bill. Lee and other proponents of the bill say that charge was unfair, in part because the prisoners who applied for early released had to win the approval of a judge. “It is simply incorrect to say that this suddenly releases a bunch of violent criminals,” Lee replied.

Nevertheless, the document circulated last week proposes changes designed to blunt any “Willie Horton” attacks. Most notably, the proposal deletes a section of the bill that would have both lowered mandatory minimum sentences from 15 to 10 years under the Armed Career Criminal Act and made the change retroactive to prisoners already convicted.

Also, the bill as written would change the law to require that the increased penalties for a second conviction for carrying a gun during a crime (18 U.S.C. § 924(c)) only apply after a prior conviction. Right now, if someone carries a gun during a drug sale today, and then does it again tomorrow, he faces a mandatory minimum of 30 years – five for today’s gun and 25 for tomorrow’s gun. The proposed bill makes clear that a defendant must be convicted for the first 924(c) before a second 924(c) could trigger a higher mandatory minimum. The bill as written would let people who are serving such sentences apply for a sentence reduction, but the new proposal would change the bill to “prohibit any retroactive relief for any offender convicted of any serious violent felony,” according to the background memo. That leaves reformers in the uncomfortable position of arguing that a low-level drug dealer armed with a weapon shouldn’t count as a violent offender, because the law generally reserves that title for people who commit violent acts.

Even the watered-down bill may not go far enough for Republican opponents. A Republican senate aide told The Daily Caller last week that Callahan had not been classified as a violent offender, so the idea that the revised legislation being proposed “would somehow prevent the early release of violent criminals like Wendell Callahan is an affront to the facts.”

Opponents complain that “the bill will over-expand judicial discretion to apply the leniency of the ‘safety valve’ to major drug traffickers, including those with multiple prior criminal convictions. Under current law, the safety valve permits minor participants in drug trafficking crimes with minor criminal records to reduce their sentencing exposure to avoid mandatory minimum sentences, even if they choose not to cooperate.”

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. If we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

If you have a question, contact us using our handy contact page. We don’t charge for initial consultation.

JUDGE DECLARES FLYING SPAGHETTI MONSTER NOT A DEITY

Steven Cavanaugh, a Nebraska state inmate, sued under the 1st Amendment and the Religious Land Use and Institutionalized Persons Act because officials wouldn’t let him wear pirate duds, worship the Flying Spaghetti Monster (FSM), or take part in other Pastafarian pleasures. He said that the prison was violating his constitutional right to practice his religion.

Last month, U.S. District Judge John Gerrard (already in the news for his opposition to mandatory minimum sentences) denied Cavanaugh’s motion: “What drives the FSM’s devout followers, aka Pastafarians?” the Judge’s opinion asked. “Some say it’s the assuring touch from the FSM’s Noodly Appendage. There are those who love the worship service, which is conducted in Pirate-Speak and attended by congregants in dashing buccaneer garb. Still others are drawn to the Church’s flimsy moral standards, religious holidays every Friday, and the fact that Pastafarian Heaven is way cooler. Does your Heaven have a Stripper Factory and a Beer Volcano? Intelligent Design has finally met its match—and it has nothing to do with apes or the Olive Garden of Eden.”

But after examining the elements constituting religious beliefs, the Judge decided that Pastafarianism is not a religion, only a parody made to look like one. “This is not a question of theology,” the Court wrote. “It is a matter of basic reading comprehension… it is evident to the Court that FSMism is not a belief system addressing ‘deep and imponderable’ matters: it is… a satirical rejoinder to a certain strain of religious argument… Nor, however, does FSMism advocate for humanism or atheism… Those belief systems, although not theistic, still deal with issues of ‘ultimate concern’ and take a position ‘on religion, the existence and importance of a supreme being, and a code of ethics.’ FSMism takes no such position: the only position it takes is that others’ religious beliefs should not be presented as ‘science.’ Despite touching upon religion, that is a secular argument.”

White House Promises “All-Nighter” On Commutation Petitions

Playing the Percentages

Report Suggests BOP Saving $2 Billion From 2014 Guideline Reduction

Why You Should Have a Lawyer – Judge Convicted of Ordering Pro Se Defendant Stunned

Minnesota Towns Ban Sex Offenders in Wake of Federal Court Ruling

Because We Say So

Government Challenges EDNY Expungement of Conviction

Is the Bloom Off the Sentencing Reform Rose?

WHITE HOUSE PROMISES “ALL-NIGHTER” ON COMMUTATION PETITIONS

White House Counsel Neil Eggleston said last week he told his staff “no more eating, sleeping or drinking until we get all these commutations done,” in response to criticism that the Obama administration has done little to address a backlog of 9,000 clemency petitions.

Obama has commuted the sentences of 248 federal prisoners – mostly low-level drug defendants – including 61 at the end of March. The commutations have come in small batches, with last December’s 95 commutations the biggest to date. Last week, Eggleston said he believes the “infrastructure is now very much in place” to file and process clemency petitions.

So far, few federal prisoners have met the Administration’s strict criteria for clemency, which include serving at least 10 years in prison and high standards for nonviolence.

Eggleston said that most of the problems cited two months ago in a sharply-worded resignation letter by DOJ Pardon Attorney Deborah Leff have been addressed, and he rejected a recent New York Times editorial claim that the pardon process should be moved out of DOJ because federal prosecutors are trained to put people in jail, not get them out. “They’re quite committed to this,” Eggleston said.

The U.S. Sentencing Commission’s released a report last Friday finding that Amendment 782 – the Commission’s latest 2-level reduction for most drug offenses – has reduced sentences for 26,850 federal prisoners by an average of two years each.

Ohio State law professor Doug Berman estimated that Amendment 782 retroactivity is “on track to save federal taxpayers around $1.9 billion.” He argued last Friday in his sentencing blog that “as federal statutory sentencing reforms remained stalled in Congress and as Obama continues to be cautious in his use of his clemency power, this data provides still more evidence that the work of the U.S. Sentencing Commission in particular and of the federal judiciary in general remains the most continuously important and consequential force influencing federal prison populations and sentencing outcomes.”

PLAYING THE PERCENTAGES

Eladio Marroquin-Medina did what most drug defendants end up doing – he helped the government out, and got a 72-month sentence instead of the 87 to 108 months the Guidelines recommended.

Happily for Eladio, he later got a 2-level reduction under Guidelines Amendment 782. The district court recalculated his new advisory Guidelines range as 70 to 87 months, and then applied the same percentage reduction he had gotten for substantial assistance before, giving him a new sentence of 58 months.

Unhappily for Eladio, the district court did not apply his “level-based” approach. His original sentence had been reduced three Guidelines levels, and Eladio thought his new lower range should be reduced by three levels, too. This would have given him a sentence as low as 51 months. The district court refused, believing that it only had the authority to use a percentage-based approach under U.S.S.G. Sec. 1B1.10(b)(2)(B).

A week ago, the 11th Circuit ruled for Eladio. It held the Guidelines just grant a sentencing court the discretion to comparably reduce a defendant’s sentence where that defendant previously received a Sec. 5K1.1 departure at his original sentencing. “If a sentencing court chooses to exercise its discretion and make a comparable reduction,” the Court said, “it is not bound to use the percentage-based approach – or any one specific method – to calculate the comparable reduction. Rather, the court may use any of the reasonable methods that were available to calculate the original Sec. 5K1.1 departure, so long as they result in a comparable reduction.”

WHY YOU SHOULD HAVE A LAWYER – JUDGE CONVICTED OF ORDERING DEPUTY TO STUN PRO SE DEFENDANT

A former Maryland judge who ordered a sheriff’s deputy to set off a defendant’s “stun-cuff” ankle device was sentenced last week to anger-management classes a $5,000 fine.

Judge Robert C. Nalley will also spend a year on probation. Nalley pleaded guilty earlier this year to a civil rights violation for ordering a deputy to activate the “stun-cuff.” that a defendant appearing before him was wearing around his ankle. The defendant, who was acting as his own lawyer, was before Nalley in July 2014 for jury selection and had failed stop speaking when the Judge ordered him to do so.

After he was shocked, the defendant fell to the ground screaming. Prosecutor Kristi O’Malley noted that the defendant remained courteous at all times, but the Judge “very quickly grew impatient,” and that his use of the stun-cuff was “highly disproportionate” for “nothing more than verbal interruptions.”

Nalley, who was a judge in Charles County from 1988 to September 2014, did not apologize in court but did say he had made an “error in judgment.”

MINNESOTA TOWNS BAN SEX OFFENDERS IN WAKE OF FEDERAL COURT RULING

Minnesota has seen a dramatic rise in municipal laws restricting where sex offenders can live after they have served their terms, setting up a fight at the State Capitol. Some state legislators want to give local communities more control to enact new restrictions, as communities brace for the release of more sex offenders from forced civil commitment in response to a federal ruling that declared the state’s program unconstitutional.

In Karsjens v. Jesson, Judge Donovan Frank ruled last year that the Minnesota Sex Offender Program is essentially permanent confinement with no clear path to release.

A group of legislators has proposed a measure allowing cities and counties to enact tougher laws to keep Level 3 sex offenders — considered the most likely to reoffend — away from schools, parks and other places frequented by children. The chief sponsor says he hopes the bill will give the towns stronger legal standing to defend their sex-offender ordinances in court.

BECAUSE WE SAY SO

The request was unremarkable. An inmate wanted a copy of his plea agreement unsealed. The district court refused, citing its universal policy to make such agreements available only to the parties, explaining cryptically that “the Court has reasons to do what it’s done.”

Ten days ago, the 6th Circuit reversed. Noting that “plea agreements play a central role in our criminal justice system… What has been said of the plea bargaining process can also be said of the plea agreement itself: It is not some adjunct to the criminal justice system; it is the criminal justice system.” The Court argued public access to plea agreements “plays a significant role in monitoring the administration of justice by plea.” That makes plea agreements “the quintessential judicial record, entitled to the protection of the First Amendment.”

The Court of Appeals said plea agreements may be sealed “only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” The district court’s saying only that “it has its reasons” did not offer “findings specific enough that a reviewing court can determine whether the closure order was properly entered… The district court’s ruling, based on a blanket policy, does not satisfy either the constitutional or common law standards.”

GOVERNMENT CHALLENGES EDNY EXPUNGEMENT OF CONVICTION

Federal prosecutors last week urged the 2nd Circuit Court of Appeals to overturn an E.D.N.Y. district judge’s expungement of an unemployed woman’s decade-old conviction, while her attorneys argued it would be a mistake for the court to depart from existing case law.

Last summer, Judge John Gleeson expunged the conviction of a defendant known in the pleadings as Jane Doe, who had been unable to get a job in the wake her sentence for playing a minor role in an insurance fraud 10 years before.

During oral argument, Circuit judges put both sides to the test with questions on when a judge’s jurisdiction ceased, the difference between arrest and conviction records, and whether Jane Doe had adequate remedies through state laws forbidding job discrimination based on one’s criminal history.

There is no general federal statute for expungement, but a 1977 2nd Circuit ruling – United States v. Schnitzer – said expungement power is within a judge’s “equitable discretion.” Schnitzer held it should only be granted in “extreme circumstances.” Gleeson said Doe, with no subsequent criminal history and a repeatedly unsuccessful effort to get work, fit the definition.

Judge Gleeson, now in private practice, held the public was better served if Doe was a working member of society than if her conviction was a matter of public record. He wrote he had sentenced Doe “to five years of probation supervision, not to a lifetime of unemployment.”

IS THE BLOOM OFF THE SENTENCING REFORM ROSE?

Things are not looking rosy for the Sentencing Reform and Corrections Act of 2015, before the Senate as S. 2123, and before the House as H.R. 3713. The Marshall Report said last Friday that “there is a growing sense that a) Congress is unlikely to pass anything this year worthy of being called reform, and b) it might be better to start over in 2017.” Many criminal justice reform advocates – and more than a few inmates – have heard that refrain before.

The Sentencing Reform and Corrections Act of 2015 was predicted to be a defining issue of this Congress, a rare unifying moment for Republicans, Democrats and the President. Instead, the members of the Judiciary Committee who wrote the criminal justice package are now at war over whether to consider Mr. Obama’s nominee to the Supreme Court, Judge Merrick B. Garland.

The New York Times reported last Thursday that the feud over the nomination has overshadowed the effort to pass sentence reform. Supporters of reform are worried about the bill’s fate, especially with the Senate about to turn to time-consuming spending bills, and with the election-year calendar approaching a point where only the most essential work gets done.

“If this is going to happen along with 12 appropriations bills, we are going to have to elbow our way into the queue,” Sen. Richard Durbin (D-Illinois), one of the bill’s authors, said. “The ball is now on the Republican side of the net.”

The Capitol Hill newspaper Roll Call reported last week that Administration officials are “quite optimistic” that the Senate will act on a criminal justice overhaul bill “quite soon,” according to White House Counsel Neil Eggleston. But Senate leaders who have been working closely with White House officials, sounded more cautious. “It doesn’t seem to be moving,” said Judiciary member Sen. Jeff Flake (R-Arizona) admitted. “We’ve got to get agreement on some things so it doesn’t take much time,” he said.

Meanwhile, criminal justice issues are generating some heat for the Democrat front-runner. Former President Bill Clinton spent more than 10 minutes last Thursday confronting protesters at one of his wife’s campaign rallies in Philadelphia over criticisms that a 1994 crime bill he approved while president led to a surge in the imprisonment of black people.

The former President gave as good as he got. Clinton said the bill lowered the country’s crime rate, which benefited African-Americans, achieved bipartisan support, and diversified the police force. He told one protester, “I don’t know how you would characterize the gang leaders who got 13-year-old kids hopped up on crack and sent them out onto the street to murder other African-American children … Maybe you thought they were good citizens … You are defending the people who kill the lives you say matter.”

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. If we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

If you have a question, contact us using our handy contact page. We don’t charge for initial consultation.

Hands Off My Money!

Scarlet Letter Lawsuit Moves Forward

Reading the Tea Leaves on Johnson Retroactivity

You Should Have Told Me I Could Say Something

Dog Bites Man: DOJ says BOP Medical Care Not “Adequate”

Politics and Sentence Reform

HANDS OFF MY MONEY!

Sila Luis was accused of swindling the Government in a $45 million health care scam. She intended to hire a lawyer with her own money – cash she had legitimately earned outside of the alleged fraud – but the government convinced a court to freeze all of her assets (not just the money it said she had stolen), because if she was convicted, Luis would need her legit cash to pay restitution.

The government commonly gets courts to issue pre-trial freezes on assets it says were earned from crime. The theory is that those ill-gotten sums never really belonged to a defendant to begin with. But the Luis asset freeze was different – everything she owned (legal or not) was seized.

Luis argued that freezing her lawfully earned assets denied her 6th Amendment right to hire the attorney of her choice. Last Wednesday, the Supreme Court of the United States (SCOTUS) agreed, putting a stop to the government’s overreach.

The justices said that the difference between the usual pretrial asset freeze and Luis’s case “consists of the fact that the property here is untainted; i.e., it belongs to the defendant, pure and simple. In this respect it differs from a robber’s loot, a drug seller’s cocaine, a burglar’s tools, or other property associated with the planning, implementing, or concealing of a crime. The Government may well be able to freeze, perhaps to seize, assets of the latter, “tainted” kind before trial. As a matter of property law the defendant’s ownership interest is imperfect. The robber’s loot belongs to the victim, not to the defendant … The property at issue here, however, is not loot, contraband, or otherwise “tainted.” It belongs to the defendant.”

The opinion included a troubling observation for federal defendants who are not sitting on a pile of legal cash. It suggested that if the government’s position was upheld, innocent defendants could be stripped of everything before trial, and “would fall back upon … overworked and underpaid public defenders … Only 27 percent of county-based public defender offices have sufficient attorneys to meet nationally recommended caseload standards. And as one amicus points out, ‘[m]any federal public defender organizations and lawyers appointed under the Criminal Justice Act serve numerous clients and have only limited resources’.”

“The upshot,” the opinion concluded, “is a substantial risk that accepting the Government’s views would – by increasing the government-paid-defender workload – render less effective the basic right the Sixth Amendment seeks to protect.”

So the Supreme Court acknowledged that throwing Luis and others like her to the public-defender system would weaken their 6th Amendment rights to effective counsel. But what does that say about the constitutional rights of the vast majority of federal defendants who had no other choice?

SCARLET LETTER LAWSUIT MOVES FORWARD

A new federal law requiring the State Department to mark the passports of certain convicted sex offenders faced its first test in federal court on Wednesday.

A group of convicted sex offenders has asked a federal district court in Oakland, California, to block enforcement of the law pending the outcome of a February lawsuit they filed that challenges the law’s constitutionality. The Inter-national Megan’s Law to Prevent Demand for Child Sex Trafficking requires the State Department to add a “unique identifier” to passports of Americans con-victed of sex crimes involving minors, and directs U.S. officials to alert other governments when those Americans travel abroad.

“For the first time in the history of this nation,” the lawsuit alleges, “the United States Government will publicly stigmatize a disfavored minority group using a document foundational to citizenship.” The plaintiffs argue the law violates the First Amendment by forcing people convicted of sex offenses to bear the equivalent of a “Scarlet Letter” on their passports.

During the hearing, U.S. District Judge Phyllis J. Hamilton seemed skeptical of the challengers’ arguments that marking the passports would expose travelers to the risk of physical harm and imply that the holders had engaged in child sex trafficking or child sex tourism. “I’m not sure how you make that leap, that that’s what the message is,” the judge said. “Where does that come from?”

The plaintiffs want the judge to grant an injunction against enforcing the law while the lawsuit goes forward. The DOJ argues that an injunction is premature, because rules to implement the new law have not yet been written.

The whole question may seem confusing. Petitioner Welch thinks Johnson should retroactively apply to him. So does the government. But nothing is simple for SCOTUS. The underlying issue is important enough to be fairly argued, so the Court appointed an attorney to play devil’s advocate, and contend that Johnson should not be retroactive because it’s holding was purely procedural, not substantive.

Afterwards, one commentator suggested that the oral argument presaged a “likely decision in favor of retroactivity,” a view that Families Against Mandatory Minimums (FAMM) immediately trumpeted to inmates in an email. The court observer, law professor Rory Little, wrote for the website SCOTUSBlog (which is the “go-to” source for Supreme Court information on the Web) that “while it is not possible to describe the intricacies of retroactivity doctrine here — let alone wise if we want to keep our readers awake — it looks like last Term’s decision in Johnson v. United States will be declared to apply retroactively for all purposes, including on first and even successive (assuming they are timely filed) habeas corpus petitions.”

It’s a fool’s errand to try to read how the Court is going to rule based on what is said at oral argument. And the intricacies of the retroactivity doctrine – whether a change in the law is procedural or substantive – first articulated a generation ago in Teague v. Lane are Gordian. Law prof Douglas Berman wrote in his sentencing blog last Thursday that “the Welch oral argument leaves me concerned that the current Justices are going to be content to apply existing Teague doctrines in a quirky manner to a quirky case …”

Nevertheless, the Justices expressed amazement that anyone could see Johnson as a merely procedural decision. Justice Ginsburg asked “how can it not be substantive when, under one rule, the sentence range goes minimum of 15 years up to life, and the other reading, it’s zero to ten years? I can’t imagine anything more substantive than five extra – a minimum of five extra years in prison.” And Justice Breyer said, “I thought the point of Teague was that if the statute under which they are convicted doesn’t exist anymore because … it was an unconstitutional statute­­ they are serving time under a statute which was then and is now nonexistent and, therefore, they get out.”

Prof. Little wrote that “the decision in this case is likely to be simply one more precedent in the wavering doctrinal line … But convicted federal felons whose sentences are reduced by five or more years will not care about the intricacies, while young law professors aspiring to tenure will have new grist for their mills.”

A decision in Welch – which will probably be favorable to retroactivity – should be released by the end of June.

YOU SHOULD HAVE TOLD ME I COULD SAY SOMETHING

Back in 2009, mariner José Luis Casiano-Jiménez thought things were breaking his way. He had signed on a merchant ship in a South American port as an “able-bodied seaman,” sort of a maritime worker bee. Before the voyage had progressed much, he was promoted to first officer due to an unexpected need for a replacement. This is sort of like hiring on at the bank as an assistant teller, and the next day becoming vice president.

Things didn’t stay rosy, however, when the ship arrived in Puerto Rico, and everyone on board was arrested for importation of drugs. At the trial, the seamen were acquitted, but the jury wasn’t so kind to the ships’ officers. During the trial, the defendants met in a group with their lawyers, where the attorneys “explained to them . . . that it would not be advisable for any of them to take the stand” and that the lawyers had collectively agreed that a single expert would present the rudiments of a “lack of knowledge” defense on behalf of all the defendants.

José, of course, was among the convicted. After he lost his appeal, he filed a motion under 28 U.S.C. § 2255, in which he claimed that his lawyer had not advised him of his right to testify in his own behalf. The trial court threw the motion out as “inherently incredible,” despite the fact that José’s attorney backed up his client as to what had happened.

Last week, the 1st Circuit reversed. Holding that “there must be a focused discussion between lawyer and client” about the defendant’s right to testify, and “that discussion must — at a bare minimum — enable the defendant to make an informed decision about whether to take the stand.” Here, the Court of Appeals said, “the assembled defense lawyers told the assembled defendants that the lawyers ‘thought an expert would be the best way . . . to testify on all their behalf’ and explained to them that ‘it was a consensus . . . it would not be advisable for any of [the defendants] to take the stand’. But that consensus was a consensus only among the lawyers. During the meeting, no one told the petitioner, in words or substance, that he had a right to testify; and no one bothered to obtain his informed consent to remaining silent … The most that can be said is that the defense lawyers unilaterally decided that none of the defendants would testify and presented that decision to the defendants as a fait accompli.”

The 1st Circuit found that the error had prejudiced José, because the evidence was so close that “his testimony could have been a game-changer.” Noting that a defendant’s testimony as to non-involvement should not be disregarded lightly, the Court noted that he had never sailed with the crew before, never sailed on that ship before, and had signed on only as a seaman. “These facts would have bolstered the petitioner’s claim that he was unaware of the presence of any contraband on the ship,” the Court held. “Given this tableau, prejudice is obvious.”

DOG BITES MAN: BOP MEDICAL CARE ISN’T ‘ADEQUATE’

In journalism, a “dog bites man” story is one that is not news at all, something that’s so commonplace that everyone knows it already. So it is with last week’s report from the Department of Justice Office of Inspector General, revealing that the BOP suffers from consistently understaffed health facilities, and mismanages the health services staff it does have, resulting in medical care for inmates that is inadequate.

The OIG’s conclusions won’t come as a surprise to inmates. The report found that lousy pay and benefits leaves the BOP unable to hire enough medical professionals. As a result, persistent health staffing shortages have left some BOP institutions with staff vacancy rates of 40% or higher.

A former BOP official told auditors that medical staffing vacancies have reached a “crisis level” at some institutions. “Although BOP policy states that the vacancy rate shall not exceed 10 percent during any 18-month period, we found that only 24 of 97 BOP institutions had a medical staffing rate of 90 percent or higher as of September 2014,” the review found. Making matters worse, the OIG said, the BOP does not competently manage the staff it has or tried to address the personnel shortage in a coordinated, strategic way.

Senate Majority leader Mitch McConnell (R-Kentucky) remained in Kentucky last week, but sentencing reform followed him there. Last Tuesday, Kentucky sentence reform advocates held a rally outside McConnell’s Lexington office to demand that he bring S. 2123 to a vote.

Meanwhile, last Monday, the National Urban League – a civil rights organization that advocates on behalf of African Americans against racial discrimination – delivered a surprising and striking rebuke to sentence reform legislation. In a detailed letter delivered to the U.S. Sentencing Commission, National Urban League President Marc Morial demanded that Congress delay action on the Sentencing Reform and Corrections Act of 2015 until the Sentencing Commission delivers detailed data on the impacts S. 2123 and H.R 3713 would have on Blacks and Hispanics before giving support.

Despite the cheerleading led by the White House press office, some commentators aren’t giving the President chops for the commutations. Mark Osler, a law professor and former federal prosecutor, said in the New York Times last Friday that with 9,000 petitions still pending, the Administration has nothing to crow about. “The problem here is that too many cases can’t be adequately considered by the president because of a sluggish and often intransigent review process. Clemency petitions undergo no fewer than seven levels of review, four of them within the Department of Justice. Within the Justice Department, clemency petitions run not only through the Office of the Pardon Attorney but also through the office of the deputy attorney general. When the pardon attorney, Deborah Leff, resigned in January, she complained in her letter of resignation that meritorious clemency cases had been thwarted by those above her. She noted in particular that some of her own recommendations had been overruled by the deputy attorney general, Sally Quillian Yates.”

Osler noted that the process includes the opinion of the federal prosecutors who brought the case in the first place. “But prosecutors are the wrong people for the task of vetting clemency cases. I was a federal prosecutor for five years … The prospect of being wrong — and a clemency initiative like Mr. Obama’s can feel like a judgment that prosecutors were wrong — can be a lot to bear. We should not be surprised if, when it comes to Mr. Obama’s clemency initiative, prosecutors systematically resist what is, in effect, an indictment of their work.”

Osler suggested that the DOJ Pardon Attorney be put at the top of the clemency process instead of the bottom, and report directly to the president. “That would allow an independent but thorough review of clemency petitions free from the influence of career prosecutors.”

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. If we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

If you have a question, contact us using our handy contact page. We don’t charge for initial consultation.

OBAMA COMMUTES 61 DRUG SENTENCES

President Barack Obama commuted the sentences of 61 prisoners today (Wednesday, March 30, 2016), as a continuation of an effort to more aggressively use the commutation power, particularly as it relates to low-level drug offenders.

The names of the prisoners receiving commutations have not yet been released.

“Despite the progress we have made, it is important to remember that clemency is nearly always a tool of last resort that can help specific individuals, but does nothing to make our criminal justice system on the whole more fair and just,” White House counsel Neil Eggleston wrote in a blog post that went online Wednesday morning.

“Clemency of individual cases alone cannot fix decades of overly punitive sentencing policies. So while we continue to work to resolve as many clemency applications as possible — and make no mistake, we are working hard at this — only broader criminal justice reform can truly bring justice to the many thousands of people behind bars serving unduly harsh and outdated sentences,” Eggleston wrote.

The announcement was intended to blunt a rash of criticism over the past week about the failure of the Administration’s pardon process to live up to its hype.

248 commutations – a drop in the bucket, and this guy’s time is almost up …

When the Dept. of Justice’s new acting pardon attorney, former AUSA Robert Zauzmer, took office last month, he found a backlog of over 9,000 clemency petitions awaiting initial processing. Most were the byproduct of Clemency Project 2014, established with great fanfare by DOJ to process additional applications from federal prisoners seeking reductions of unjustifiably long drug sentences.

The Washington Post reported January 19th that his predecessor, Deborah Leff, quit over frustrations with a lack of resources. In her resignation letter, just obtained yesterday by USA Today under a Freedom of Information Act request, Leff accused the Obama administration of telling DOJ attorneys to neglect applications for presidential pardons to give priority to the Justice Department’s initiative to release low-level offenders from prison.

Leff’s resignation letter suggested a broken bureaucratic process at odds with Obama’s announced aim of exercising his pardon power “more aggressively” in the final months of his presidency. She wrote that the administration’s focus on the clemency initiative at the expense of traditional pardons and commutations “means that the requests of thousands of petitioners seeking justice will lie unheard.”

Some commentators in the Washington Post last Friday wondered whether Obama was ever serious about Clemency 2014. The rules for commutation requests that even make it to the overburdened pardons office are inexcusably discouraging. The worst is that inmates must have served at least 10 years of their sentence. Other rules hold that they must not have “a significant criminal history,” they must be nonviolent, low-level offenders, and they must be serving a sentence harsher than they would have gotten if convicted of the same offense today. Those who fall “outside of this initiative,” according to DOJ, can still seek clemency under the old rules if their applications are “especially meritorious.”

Because of this, the Washington Post reported last week, Obama’s clemency record makes him one of the least merciful presidents in history. He has granted just 70 pardons – the lowest number of any full-term president since John Adams – and 187 commutations of sentence (248 with today’s announcement). The White House website today was trumpeting that Obama has issued more commutations than the last six presidents combined. However, it fails to mention that the number of pardons issued is a low not equaled since the 1790s.

Meanwhile, over 1,600 pardon petitions have been denied (more than five of the previous six presidents), as well as more than 8,000 commutation requests (a new record). An additional 3,400 requests have been “closed without presidential action.”

Obama’s record is all the more questionable because he has promised more while delivering less than any president in history. In 2014, then-Attorney General Eric H. Holder Jr. encouraged federal prisoners to seek relief, saying there were “still too many people . . . sentenced under the old regime” needing commutation. Holder said the White House had “indicated” that it wanted to “consider additional clemency applications to restore a degree of justice, fairness, and proportionality for deserving individuals who do not pose a threat to public safety.”

However, the Post reported last week, Clemency Project 2014 has become a bureaucratic disaster, assigned to volunteer lawyers and law students with little experience in dealing with the federal criminal justice system.

The White House has announced that it will host a briefing titled Life After Clemency with advocates, academics, and Administration officials to discuss ideas on the President’s clemency initiative and ways to improve paths to reentry. In addition to officials from the White House and the Department of Justice, experts, academics, and commutation recipients will share their expertise and insights on returning to society after years behind bars.

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. If we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

If you have a question, contact us using our handy contact page. We don’t charge for initial consultation.

DANCING THE KENTUCKY TWO-STEP

The Speedy Trial Act requires that a defendant be brought to trial within 70 days of indictment (subject to a lot of exceptions and exclusions). But what’s a court to do when there are no exclusions left, and the 70 days are up?

The 6th Circuit last week told an Eastern District of Kentucky court what it could not do. Jason Brown was a defendant with a definite idea about his rights under the STA. When the deadline loomed, but the attorneys had conflicts and a witness was not available for a couple of weeks, he refused to go along with a continuance. So the judge started the trial, picked a jury, and then recessed for a few weeks until everyone’s schedule was clear.

Problem solved? Jason didn’t think so, and the Circuit agreed. In a lengthy opinion, the Court concluded that the “trial did not commence on September 8, despite the commencement of voir dire, because the court employed the start-and-stop plan with the intent to pay lip service to the Act.” The appeals panel concluded that none of the days after September 8 were excludable from the STA, and thus Jason’s rights were violated.

The 6th Circuit noted in passing that the district court seemed to believe that Brown had to show “prejudice” to prevail on his STAclaim. The Court rejected that, holding that the STA “guarantee is violated if the prosecution oversteps the time limits of the act. Under the Speedy Trial Act there is no need to measure prejudice to the defendant.”

United States v. Brown, Case No. 14-6543/6544 (6th Cir. Mar 24, 2016)FOIA INFORMATION ISN’T ANY FREER THAN YOU ARE

It’s common for inmates to file requests under the Freedom of Information Act to obtain files relating to their cases. It’s almost as common to wait for years before hearing from the FBI, DEA or some other agency that hardly any documents (or no documents at all) exist.

If it seems that agencies are worse than ever in turning over records, there’s a reason: the Associated Press reported last week that during the Obama years, the government set a record for the number of times it told requesters that despite searching, it couldn’t find a single page requested under the FOIA.

In more than one in six cases – about 130,000 times last year – government workers said they came up empty-handed. In fact, people who asked for records under the law received censored files or nothing in 77% of requests, also a record.

The FBI couldn’t find any records in 39% of cases. U.S. Customs and Border Protection couldn’t find anything in 34% of cases. Skepticism over such results has led some requesters to specify exactly how they want federal employees to search for files, rather than relying on government staff to figure out how best to proceed. “They do really crappy searches,” said Washington lawyer Kel McClanahan, who handles transparency and national security cases.

9th CIRCUIT JUDGE CALLS OUT PROSECUTORS

Last summer, Judge Alex Kozinski of the 9th Circuit wrote a thoughtful law journal article called Criminal Law 2.0. In it, he listed 12 reasons to be concerned about the criminal justice system, including prosecutors withholding evidence from the defense in violation of Brady v. Maryland.

One of Judge Kozinski’s suggestions for ensuring Brady compliance was to name names: “When prosecutors misbehave, don’t keep it a secret. Defense lawyers who are found to have been ineffective regularly find their names plastered into judicial opinions, yet judges seem strangely reluctant to name names when it comes to misbehaving prosecutors.”

Last week, Judge Kozinski did just that. In Frost v. Gilbert, a decision on a Washington state habeas corpus, the 9th Circuit held that prosecutors had withheld evidence of a plea deal the prosecution had secretly given a witness in exchange for testifying, and then lied to the prisoner in answer to a public records request. The court held, however, that the prisoner had not been prejudiced, because – even if he had known about the secret deal – there was no reasonable probability that he would have been acquitted.

Five of the 11 Circuit judges essentially told the prosecutors – who were identified in the opinion– to report themselves to the state bar: “We have been apprised of no sanctions against these individuals, nor any inquiry conducted by the courts. Nor have we heard of any effort to hold [the witness] accountable for the perjury he almost certainly committed in his testimony in Frost’s case or to determine the degree to which he may have been aided in that endeavor by prosecuting attorney Wagnild. We are mindful that there may be circumstances of which we are unaware that cast the matter in a different light. Yet … we do not believe this is a sufficient reason to keep silent. The individuals we have named may wish to furnish a copy of this opinion to the state bar and seek to clear their names by providing an explanation for its consideration.”

Four of the en banc judges accused Judge Kozinski of using the decision as a “platform to offer the author’s ‘two-cents’ on the supposed inner-workings of Washington’s criminal justice system. Along the way, the character and integrity of several public employees is tarnished.”

Fletcher Freeman was charged with a drug conspiracy and possession. Later, the government piled on a third count for possession in a superseding indictment. He was convicted in due course.

Fletch filed a motion under 28 U.S.C. § 2255, claiming that the possession count was barred by the statute of limitations. He argued his lawyer was ineffective in failing to argue that the third count was filed past the 5-year cutoff.

Most 2255 ineffective assistance of counsel claims fail, not because lawyers don’t blunder (they often do), but because inmates can’t show that if that the mistake hadn’t happened, it’s reasonably probable they would have ended up better off. That’s what happened to Fletch in the district court: the government admitted the possession count was barred by the statute of limitations, but said Fletcher would gotten the same sentence even without it.

Last week, the 5th Circuit reversed. It held that “Freeman’s counsel was deficient … Counsel was required to perform research on whether the superseding indictment would relate back to the original indictment.” More important for Fletcher Freeman, the Circuit held that “the ‘prejudice prong’ is also supported by the record. Freeman had to pay a $100 special assessment on count three; thus, he suffered prejudice as a result of counsel’s failure to move to dismiss said count.”

So a hundred bucks will buy you prejudice. There are few better bargains in life.

LEGAL BRIEFS

ME AND MY BIG MOUTH

When Jorge Sanchez was being booked after his arrest on trafficking charges, the police booking asked the not-yet-Mirandized defendant the usual questions about his name, date of birth, height, weight, and so on. When asked for his current employment, Sanchez matter-of-factly answered that he was “a drug dealer.”

Not a good answer. Last week, the 1st Circuit told the abashed Sanchez that normal booking questions do not constitute an interrogation, and that it would not suppress his wise-ass response.

Prison phone companies told the U.S. Court of Appeals for the D.C. Circuit last week that enforcement of new Federal Communications Commission-ordered lower rates for in-state calls will cause “jail unrest.”

The phone companies want the Court to stay the FCC order. The vendors say the court should mostly preserve the status quo, while the FCC argues that the order lets it apply its existing caps on interstate call rates to intrastate calls.

A phone company executive said in an affidavit that if the new order is enforced, “inmates will be angry if they believe that we are charging the wrong rates. There could be damage to our phones and equipment, as well as a threat to overall security and corrections personnel including inmates within the facilities. Having been in this industry for eight years, I have experience with jail unrest and I know that issues with the phones can trigger it.”

“I admit I was in a conspiracy with other people to, uhm — with 50 grams or more of meth, to have bought it,” Lloyd Nickle told the district court. The judge, however, wanted more, telling him to “admit enough information for me to make a reasonable decision about your drug activity.” But Nickle added only that other conspiracies were not in Montana, but “in other states.” The district refused to “accept a plea from this man under these circumstances,” and made him go to trial.

Last week, the 9th Circuit reversed. It said “there is no requirement in Rule 11(b) that the defendant himself give an in-depth account of his crime or confirm that everything in the government’s offer of proof is true. Although Nickle claimed ‘some of the things that the witnesses say [in the government’s offer of proof] are untrue,’ he never suggested that the government did not have sufficient evidence for a jury to conclude that he is guilty. Armed with the defendant’s admission of guilt and the government’s offer of proof, the district court had all it needed to fulfill its duty underRule 11(b)(3).”

SENTENCE REFORM LAYS AN (EASTER) EGG

The Sentencing Reform and Corrections Act of 2015 – before the Senate as S. 2123, and before the House as H.R. 3713 –is nowhere near hatching. All that happened last week was that H.R. 3713 picked up yet two more cosponsors, both Democrats from New York. The Senate bill still has 28 cosponsors, while H.R. 3713 now has 63.

Mostly, legislators were home for Easter week. Back in Kentucky, Senate Majority Leader Mitch McConnell told students at Northern Kentucky University that S. 2123 is supported by a majority of Democrats, but Republicans are divided on the issue. “The reason it’s kind of divided is that you’ve got an awful lot of people in the law enforcement community that are not really convinced that having lighter sentences is a good idea,” McConnell said. “They oppose federal sentencing reform because “there aren’t any casual users in the federal prison, these are all the bad guys.”

And how about those “bad guys?” The Justice Department last week released statistics – which showed federal prosecutors pursued fewer but more serious drug cases – as evidence that Obama’s criminal justice reforms are bearing fruit. “Federal prosecutors are consistently using their discretion to focus our federal resources on the most serious cases and to ensure that we reserve harsh mandatory minimum sentence for the most dangerous offenders,” Deputy Attorney General Sally Yates said.

New statistics show federal drug prosecutions down 6% in 2015 after a prior 14% drop since the beginning of former Attorney General Eric Holder’s “Smart on Crime” initiative. Since 2012, the number of federal drug defendants accused of using a weapon rose from 15% to 17% and the number with a leadership role went from 6.6% to 7.8%.

In a speech last Wednesday to Congressional interns, House Speaker Paul Ryan (R-Wisconsin) said that criminal justice policies embraced by Congress in the 1990s have “end[ed] up ruining [defendants’] lives and hurting their communities where we could’ve have alternative means of incarceration, instead of basically destroying someone’s life. I’ve become a late convert.”

Business Insider reported that Ryan said, “Criminal-justice reform is something I never thought of when I was younger. Be tough on crime, be tough on crime.” Ryan said criminal-justice reform bills would be brought to the House floor soon, and he pledged to “advance” them. “I didn’t necessarily know this before, but redemption is a beautiful thing. It’s a great thing. Redemption is what makes this place work. We need to honor redemption. We need to make redemption something that is valued in our culture and our society and in our laws.”

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. If we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

If you have a question, contact us using our handy contact page. We don’t charge for initial consultation.

President Obama is expected to grant clemency to another group of federal prisoners in the coming weeks, part of his effort to provide relief to federal inmates sentenced to harsh sentences for drug offenses.

When Obama first announced his clemency initiative in 2014, the Department of Justice asked private attorneys for help in locating candidates for commutation. At that time, DOJ was already sitting on thousands of applications. Two years later, 9,000 petitions are pending at DOJ, and another 9,000 still await review by the lawyers who volunteered to help review applicants. So far the organization, known as Clemency Project 2014, has been contacted by 34,000 prisoners, but has forwarded petitions from only 300 or so. Only 31 have received commutations.

The raw number of commutations granted by Obama – 187 – looks impressive, but it represents less than 1% of the petitions he has received, compared to almost 7% for Richard Nixon, 4% for Gerald Ford, and almost 3% for Jimmy Carter. In 2014 the Obama administration envisioned granting thousands of commutations by the end of 2016. After a very slow start in his first term, Obama did pick up the pace, but not nearly enough to hit that target.

The DOJ blames the Clemency Project, and says the group should hand over the outstanding cases without further vetting. Cynthia Roseberry, project manager at the lawyers’ network, denies foot dragging. One reason the Clemency Project has been moving so slowly is to be sure applicants meet the DOJ’s “excessively picky criteria,” which include whether a prisoner would have received a shorter sentence under current law, whether he has a significant criminal history, whether he has good conduct in prison, and whether he has significant gang ties.”

Calvin Davis made a few mistakes. First, he joined a heroin conspiracy. Second, he didn’t pick his buyers carefully, one of whom turned out to be a confidential informant. Third – and most important – he made a lousy plea deal.

Last week, he learned why economist Thomas Sowell warns that “you will never understand bureaucracies until you understand that for bureaucrats procedure is everything and outcomes are nothing.”

Cal’s plea deal provided he would be sentenced to 66% of either the low end of the Guidelines sentencing range or the statutory minimum term, whichever was higher. He expected an 80-month prison term. But the Guidelines range figured by the probation officer came out much higher than the parties had expected. The court ordered Davis to serve 172 months, a term that was 66% of the low end of the Guidelines range (consistent with the plea agreement) but more than twice what the parties anticipated when they made the plea deal.

Cal didn’t appeal or file a timely motion under 28 U.S.C. § 2255. But after the Supreme Court’s decision in Alleyne v. United States, Davis filed a § 2255 motion contending that he was entitled to relief because the judge’s sentencing findings regarding his criminal history had increased the minimum term of imprisonment. Alleyne held that any factual determination increasing a defendant’s statutory mandatory minimum term (in that case, the fact that a defendant “brandished” a gun instead of just “possessing” it) must be charged in the indictment and proven beyond reasonable doubt to the factfinder.

The district court held Davis had no Alleyne claim because the Supreme Court has not declared that decision applicable retroactively on collateral review. Last week, the 7th Circuit agreed.

The appellate judges were puzzled as to why Davis thought Alleyne helped him at all. He was subject to a 10-year statutory minimum based on the amount of drugs involved in the trafficking conspiracy – an amount charged in the indictment and to which he admitted. What’s more, criminal history findings like the ones that subjected Calvin to higher guidelines are exempt from the Apprendi v. New Jersey precedents entitling a defendant to a formal charge and a trial on facts that expose him to harsher penalties. But “the clearest impediment to the Alleyne claim” was “that the Supreme Court has not held that Alleyne applies retroactively to cases on collateral review.”

Only the Supreme Court has authority to declare Alleyneretroactive, the 11th Circuit said, and unless it does, no one can claim the benefit of Alleyne in a § 2255 motion. The Supreme Court has not declared Alleyne to be retroactive, so the case’s constitutional teachings are not available to anyone unlucky enough to be improperly sentenced before it was decided.

In a column coinciding with last Friday’s 53rd anniversary of Gideon v. Wainright, a New York public defender official called for establishment of a post-conviction right of counsel.

Under current law, prisoners are seldom entitled to a lawyer for habeas corpus actions like § 2255 motions or suits challenging prison conditions. Ken Strutin, director of legal information services at the New York State Defenders Association, argued that the right to counsel has not kept pace with overcriminalization and mass incarceration.

Strutin contended that “for the pro se, ‘access to the courts’ has been whittled down to filling out forms and rummaging through libraries inadequate to their purpose … There is no equality of lawyering between the state and the imprisoned. The information world is cruelly biased in favor of the free and the Internet ready. Government lawyers can cite materials in their briefs found easily online or on the other side of publisher paywalls. They have access to the most current resources, information archives and litigation support. How do ill-starred pro se prisoners respond to something they can’t look up, update or understand?”

Willie McCloud was convicted of being a felon-in-possession. Because he had three prior robberies, the court sentenced him under the Armed Career Criminal Act.

The ACCA provides that the prior crimes making a defendant eligible for an ACCA sentence enhancement must be “committed on occasions different from one another.” Over the years, courts have generally agreed that a crime is successive when a defendant has “a meaningful opportunity to desist … activity before committing the second offense” and “the crimes reflect distinct aggressions.”

The Government argued that Willie’s charging documents showed three separate case numbers assigned to the offenses he committed on August 4, 2008, that Willie and his fellow perps stole from three different people that day, that different kinds of property were stolen, and that the robberies were committed with different co-defendants. Willie seems to have been pretty busy that day.

The 11th Circuit threw out the ACCA enhancement. It held that just because “the charging documents indicate there were unrelated victims and different items stolen does not constitute ‘reliable and specific evidence’ pertaining to the time and location of the offenses, or otherwise indicate that there was a meaningful break between the offenses. We would not consider three temporally and logistically distinct robberies of the same victim to be a single offense. Correlatively, we do not consider – without more evidence – three different victims to indicate that the offenses were temporally or logistically distinct. Similarly, whether the pieces of property stolen were of the same or different types does not indicate the time or place of events. On the face of the charging documents, it is plausible that all three victims were standing in the same location, and each simultaneously gave up the items of value in his pockets. Thus, that there were different victims and the items stolen were two gold chains, one cell phone, and one wallet provides no indication whether the thefts were committed successively rather than simultaneously.”

Last week, President Obama nominated D.C. Circuit Judge Merrick Garland to the Supreme Court. The nomination still has to be approved by the Senate – which has promised not to act on it until after the election – and it’s hardly sure that Judge Garland will reach the high court.

Still, special interest groups are already howling that Judge Garland is too progressive and anti-business. Whatever. For prisoners – a one-issue special interest bloc if ever there was one – only one question matters: How is Judge Garland on criminal law issues?

Not so good, it turns out. When Garland was in the running for the Supreme Court in 2010, Washington attorney Tom Goldstein analyzed of Garland’s record for Supreme Court website SCOTUSblog. Although there were few cases to go on (the DC Circuit doesn’t handle many criminal law cases), Goldstein found that Garland tended to take conservative positions on criminal law.

Garland’s “track record shows a substantial sympathy for the government in criminal cases. He rarely votes to overturn a criminal conviction,” Goldstein said. In the 2010 analysis, Goldstein found Garland ruled the “opposite of his more liberal colleagues 10 times, but never goes opposite in the other direction of being more favorably inclined to the defendant.”

In cases where the law is unclear, Garland will probably be more likely to rule against the defendant. So he may not follow the rule of lenity — and side with defendants when criminal law is vague — like Scalia did. “He is a centrist, a call-them-as-I-see-them, I-have-no-interest-in-changing-the-law kind of guy,” Goldstein reported.

Will noted that “the federal prison population, which devours 25% of the Justice Department’s budget, has increased more than 300 percent in less than 30 years. Only 7% are convicted of violent crimes. Granted, a person in prison poses no threat to the community. The problem is that almost everyone who goes to prison is going to return to the community from which he or she came, and most will not have been improved by the experience of incarceration … What we are not doing well is supervising people released from incarceration. Hence … the “crime-incarceration-crime cycle.” He says “more people are sent to prison each year for violating probation or parole conditions than as a result of conviction for new crimes.”

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. If we can help you, we’ll tell you that. If what you want to do is futile, we’ll tell you that, too.

If you have a question, contact us using our handy contact page. We don’t charge for initial consultation.

About 20 years ago, Congress rewrote the habeas corpus laws to sharply limit prisoner access to 28 U.S.C. § 2255 motions. A central component of the change was the requirement that every prisoner gets only one § 2255 motion, unless a court of appeals authorizes a “second-and-successive” § 2255 filing.

Generally, getting permission for a second § 2255 is as rare as a snow squall in August (although if Johnson v. United States becomes retroactive, there’ll be a flurry of such motions). But federal prisoner and serial filer Sheldon Fuller thought he’d figured out a way around the second-and-successive limitation.

Sheldon filed his first § 2255 motion in 2011. It was denied. He sought a certificate of appealability from the 2nd Circuit in order to appeal. The COA was denied, too. But before the Court of Appeals acted on the COA, Sheldon filed a second § 2255 motion, arguing that it was not “second-and-successive” (and thus he did not need Court of Appeals permission to file it), because denial of his first § 2255 was not yet final.

The district court denied the second § 2255 on the merits, too. Likewise, his application for a COA was denied. But – you guessed it – before denial of the second § 2255 was final, Sheldon filed a third § 2255, claiming that it too was not second and successive because his prior § 2255 was still pending. Under Sheldon’s theory, he could keep filing new § 2255s until his release date (which, given his life sentence, was never), as long as he filed the new one before denial of the previous one was final.

Last week, the Second Circuit limited Sheldon’s dog to one bite. Holding that the Antiterrorism and Effective Death Penalty Act was intended to give every prisoner one chance for full collateral review, it ruled that because Sheldon’s first § 2255 had “reached final adjudication prior to commencement of the present proceeding, his instant § 2255 motion is successive.” The Court said the rule is that any § 2255 is successive if it “filed subsequent to the conclusion of a proceeding that counts as the first.” Interestingly, however, the Court suggested in a footnote that while Sheldon’s “second § 2255 motion was successive is not currently at issue, we note that it differed from the third § 2255 motion in that the second motion was filed before the adjudication of Fuller’s first § 2255 motion became final.”

The U.S. Court of Appeals for the D.C. Circuit last week put on hold a Federal Communications Commission order capping prison phone-call rates.

The FCC voted 3-2 last fall to put a rate cap on charges for all phone calls to and from prison inmates. The order was intended to curb what the FCC called “excessive rates and egregious fees” paid by inmates – as high as $14 a minute in some jails (31 times the per-minute cost of a call to Antarctica). The FCC’s rule limits the rate for debit and prepaid calls in state or federal prisons to 11 cents a minute.

The caps were challenged by prison phone companies and several states, which argued that the FCC had exceeded its statutory authority and had unlawfully disregarded the actual costs of providing telephone services to inmates.

How many Federal inmates will come back to prison at some point in their lives? Ask around the table at chow some time. The answers you get will probably be at odds with reality.

Last week, the U.S. Sentencing Commission issued results of a study that reported some sobering facts. Over an 8-year follow-up period, almost half of federal offenders released in 2005 (49.3%) were rearrested for a new crime or rearrested for a violation of supervision conditions. Almost a third (31.7%) of those guys were also reconvicted, and one-quarter (24.6%) of them were reincarcerated over the same study period.

The most dangerous time for a freed inmate is the first two years after release. The Sentencing Comission said that median time from release to rearrest was 21 months.

What’s more, all that talk about “frequent fliers” – people with impressive criminal histories who keep coming back – seems to be true. An inmate’s criminal history closely correlates with recidivism rates. Rearrest rates range from 30.2% for offenders with zero total criminal history points to 80.1% of offenders in the highest Criminal History Category. A federal prisoner’s age at time of release into the community is also closely associated with differences in recidivism rates. Offenders released prior to age 21 had the highest rearrest rate (67.6%), while offenders over 60 years old at the time of release had a recidivism rate of 16.0%.

More than a dozen states issue certificates to ex-offenders who prove rehabilitation, usually by remaining offense-free for a long stretch. The certificates protect prospective employers and may exempt recipients from laws that bar convicted felons from obtaining occupational licenses (now required for about one out of five jobs).

There is no equivalent federal certificate, so Judge Gleeson rolled his own. In an order issued last week, the judge issued a “federal certificate of rehabilitation” to a nurse with a 13-year-old fraud conviction. The defendant – identified only as “Jane Doe” — had been shut out of nursing jobs because of her conviction for a car insurance scam. She did 15 months for it, and was released 12 years ago.

Judge Gleeson wrote, “I had no intention to sentence [Doe] to the unending hardship she has endured in the job market … Her conviction makes her no different than any other nursing applicant. In the 12 years since she reentered society after serving her prison sentence, she has not been convicted of any other wrongdoing. She has worked diligently to obtain stable employment, albeit with only intermittent success. Accordingly, I am issuing Doe a federal certificate of rehabilitation.”

The judge expunged the conviction of another defendant in the same case last year, in what legal experts said was the first instance of a federal court erasing a criminal record on the grounds that it interfered with employment. Unsurprisingly, the Justice Department is appealing his order in that case.

Nicholas Ragin was concerned about being charged with running a prostitution ring and dealing drugs. His lawyer, Nikita V. Mackey, however, remained calm … very calm. So calm, in fact, that he slept during the 3-week trial of Nick and his co-conspirators.

The jury convicted Nicholas, and he got 30 years. He filed a § 2255 motion that raised eight different issues, one of which was his complaint that counsel had slept during trial. Nick’s one-paragraph aside in the § 2255 motion became the focus of an evidentiary hearing. Other defense counsel and a juror testified to counsel’s extended napping, with stories such as this one:

Mr. Mackey was sort of sitting back, leaning back in his chair with his left elbow on his left thigh … and sort of with his chin resting on his fist, and government counsel held the document in front of him and he didn’t move, he sort of sat there. Judge Conrad leaned into his microphone, because we were all sitting there and Mackey wasn’t moving and said, ‘Mr. Mackey’ . . . very loudly. Mackey then jumped up and sort of looked around and was licking his lips and moving his mouth and looked sort of confused and looked all over the room except at government counsel. And after a few seconds, he saw government counsel standing there and looked at the document.”

Despite the testimony, the district court denied the § 2255 motion, holding that Nick had not proven that he was prejudiced by counsel’s one-man slumber party. The district judge discounted the juror’s testimony because he thought she perhaps felt “remorse” for the stiff sentence the defendant received.

Last Friday, the 4th Circuit Court of Appeals threw out Nick’s conviction. The decision said, “We find it impossible not to conclude that Mackey was … not functioning as a lawyer during a substantial portion of the trial. Unconscious counsel equates to no counsel at all. Because we have no basis to conclude that an attorney who sleeps through a substantial portion of the trial has exercised judgment on his client’s behalf, ‘we have insufficient basis for trusting the fairness of that trial and consequently must presume prejudice.’ Therefore, the fact that Mackey was sleeping during Ragin’s trial amounted to constructive denial of counsel for substantial periods of that trial.”

Just about everyone knows something about Brady v. Maryland, the 1963 Supreme Court decision that holds the government violates due process when it fails to disclose to the defense evidence favorable to the accused, either because the evidence is exculpatory or because it is impeaching.

Thus, there was a flutter of excitement last week when the Supreme Court tossed a Louisiana murder conviction in a summary reversal that drew a sharp dissent from two conservative justices. The unsigned opinion held that the state court erred in upholding Michael Wearry’s conviction after it turned out that the prosecution withheld information “that could have advanced” Wearry’s defense. The opinion said that “beyond doubt, the newly revealed evidence suffices to undermine confidence in Wearry’s conviction.”

Justices Samuel Alito and Clarence Thomas, dissented, calling it “highly inappropriate” to reverse without granting certiorari so that the State of Louisiana could be heard. The majority retorted that “the Court has not shied away from summarily deciding fact-intensive cases where, as here, lower courts have egregiously misapplied settled law.”

The decision is interesting to anyone who likes seeing a blatant Brady violation, but it does not really extend or expand Brady in any meaningful way. Still, a due process win and a hot cup of coffee is a good way to start a cold spring morning.

However, people are talking, and for a change, some of the talkers are people who are in a position to know something. Speaking at a Georgetown University Law Center conference last week, Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) said “We are very close to making some changes in this bill so we can get it brought before the United States Senate.”

In January, a group led by Sen. Tom Cotton (R-Arkansas) raised concerns that Sriracha could release thousands of violent criminals early. Criminal justice reform advocates argued the bill would not guarantee the release of violent criminals, but simply let their cases get reevaluated by a federal judge.

Sen. Charles Grassley

Last Tuesday, Grassley called Cotton’s concerns “legitimate and reasonable.” While he did not provide specifics on the amendments, Grassley said legislators may have to drop parts of the bill that would have allowed Armed Career Criminal Act inmates get their sentences lowered retroactively.

Ohio State law professor Doug Berman said last week in his sentencing blog that “Senator Grassley also spoke about all the complaints he receives back in Iowa and elsewhere about leaders in DC spending all their time fighting over politics and not getting anything actually done. Senator Grassley’s comments have me now thinking that he and other GOP members of the Senate are likely to stress bipartisan work on sentencing reform when attacked by Democrats and others for ‘not doing anything …’ And work on sentencing reform will not seem all that meaningful if a bill does not come to the floor of the Senate at some point.”

The House also must pass its version of the bill, and there are reasons for concern that the House will not do so unless mens rea reform is a part of the equation. Berman said “every day that goes by without the legislative process moving forward tangibly is yet another day lost before the congressional election season gets into full swing when members of Congress start focusing more on November voting dynamics rather than whether they get anything done on a complicated policy issue that involves lots of compromises and intricacies.”

In what could be a favorable indication of Congressional movement, the Senate last Thursday overwhelmingly passed a broad drug treatment and prevention bill, the largest of its kind since a law in 2008 that mandated insurance coverage for addiction treatment. The New York Times suggested that this legislative accomplishment could be a bipartisan model for Senate cooperation on criminal justice reform.

Former Congressman J.C. Watts (R – Oklahoma), chairman of the Charles Colson Task Force on Federal Corrections, wrote a spirited piece in The Hill last week attacking myths about prison reform, such as “all drug offenders are violent” and “law enforcement is opposed to Sriracha.” He concluded that “as Congress contemplates prison reform, it could take a page out of the book of state experiences … There, public officials on both sides of the aisle came together to develop better models, informed by evidence and data, that could reduce prison overcrowding, conserve resources, and enhance public safety. These reform efforts demonstrate that it is indeed possible to promote public safety while being fiscally responsible, creating a more equitable and effective criminal justice system.”

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“I agree that the sentence is not substantively unreasonable; but I believe the result to be close to absurd." ~~~ Judge Guido Calabresi, concurring, United States v. Jones, Case No. 15-1518-cr (2nd Cir., Oct. 5, 2017).